EXHIBIT 10.30
AMENDMENT NUMBER ONE TO
LOAN AND SECURITY AGREEMENT
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THIS AMENDMENT NUMBER ONE TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), is entered into as of November 19, 1999, between FOOTHILL CAPITAL
CORPORATION, a California corporation ("Foothill"), with a place of business
located at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx
00000-0000, and QUANTUM NORTH AMERICA, INC., a California corporation
("Borrower"), with its chief executive office located at 00000 Xxxxxxx
Xxxxxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000 with reference to the following
facts:
WHEREAS, Foothill and Borrower heretofore entered into that certain
Loan and Security Agreement, dated as of December 1, 1998 (as amended, restated,
or otherwise modified from time to time, the "Agreement");
B. Borrower has requested that Foothill amend the Agreement as set
forth in this Amendment; and
D. Foothill is willing to so amend the Agreement in accordance with
the terms and conditions hereof.
NOW, THEREFORE, in consideration of the above recitals and the mutual
promises contained herein, Foothill and Borrower hereby agree as follows:
1. Defined Terms. All capitalized terms used herein and not otherwise
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defined herein shall have the meanings ascribed to them in the Agreement, as
amended hereby.
2. Amendments to the Agreement.
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(a) The following definitions set forth in Section 1.1 of the
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Agreement hereby are amended and restated in their entirety to read as follows:
"Applicable Early Termination Premium" means (a) $600,000 from
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and after the Closing Date to and including December 1, 2000, (b)
$400,000 from and after December 2, 2000 to and including December 1,
2001, and (c) $200,000 from and after December 2, 2001, and including
any Renewal Period; provided, however, that if this Agreement is
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terminated in connection with the consummation of a sale of all or
substantially all of the assets of, or Stock in, Borrower, then the
"Applicable Early Termination Premium" shall be (a) $300,000 from and
after the Closing Date through the first anniversary of the Closing
Date, (b) $200,000 from and after the first anniversary of the Closing
Date to the second anniversary of the Closing Date, and (c) $0
thereafter.
"Maximum Amount" means (a) prior to the First Amendment Effective
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Date, $20,000,000 (b) during the period from and after the First
Amendment Effective Date through January 14, 2000, $20,500,000, and
(c) from and after January 15, 2000, $20,000,000.
"Renewal Date" means December 1, 2002.
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(b) The following definitions hereby are added to Section 1.1 of the
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Agreement in the proper alphabetical order:
"Advertising Expenditures" means for any Person for any period of
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determination, the aggregate amount of expenses incurred (determined
in accordance with GAAP) by such Person for media time (including,
without limitation, the amount of prepaid media time expensed during
such period) during such period of determination.
"Advertising/Sales Ratio" means, for any Person for any period of
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determination, the ratio, expressed as a percentage, of (a)
Advertising Expenditures of such Person for such period of
determination to (b) the gross Dollar amount of orders received by
such Person for the sale of goods for such period.
"Borrowing Base-Temporary" means, as of any date of
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determination, the result of:
(x) the lesser of
(i) the sum of
(A) the product of (1) 85% minus the Dilution Reserve
in respect of Accounts, times (2) the aggregate amount
of Eligible Accounts other than Eligible Credit
Enhanced Retail Accounts, plus
----
(B) the lesser of (1) 85% of the Net Eligible Credit
Card Proceeds and (2) $3,000,000, plus
----
(C) the product of (1) 85% minus the Dilution Reserve-
Eligible Credit Enhanced Retail Accounts, times (2) the
aggregate amount of Eligible Credit Enhanced Retail
Accounts;
and
(ii) an amount equal to Borrower's Collections with respect
to Accounts for the immediately preceding 60 day
period,
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plus
(y) the lowest of
(i) $6,000,000,
(ii) the sum of (A) 45% of the value of Eligible Landed
Inventory, plus (B) the lesser of $5,000,000, and 45 %
----
of the value of Eligible In Transit Inventory,
(iii) 80% of the net realizable value of Eligible Inventory
(which shall constitute its orderly liquidation value
less estimated expenses of liquidation thereof in each
case as reasonably determined by Foothill),
and
(iv) 50% of the amount of credit availability created by
clause (x) above,
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minus
(z) the aggregate amount of reserves, if any, established by
Foothill under Section 2.1(b);
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provided, however, that if, at any time, the Borrowing Base-Temporary
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exceeds the Borrowing Base by more than $2,500,000, then the Borrowing
Base-Temporary shall be equal to the sum of the Borrowing Base plus
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$2,500,000.
"Dilution-Credit Enhanced Retail Accounts" means, as of any date
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of determination, in each case based upon the experience of the 90-day
period ending on the date that is 30 days prior to such date of
determination, the result of dividing the Dollar amount of (a) bad
debt write-downs, discounts, cooperative advertising credits, returns,
promotions, credits, or other dilution with respect to the Eligible
Credit Enhanced Retail Accounts, by (b) the sum of (i) Borrower's
Collections (excluding extraordinary items) in respect of the Eligible
Credit Enhanced Retail Accounts, plus (ii) the Dollar amount of clause
(a).
"Dilution Reserve-Credit Enhanced Retail Accounts" means, as of
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any date of determination, the number of percentage points by which
Dilution-Credit Enhanced Retail Accounts is in excess of 5%.
"EBITDA" means, with respect to any Person for any period, the
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sum of such Person's net earnings (or loss), excluding extraordinary
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gains and extraordinary losses (including losses on the sale of
Investments or fixed assets), before interest expense, taxes,
amortization, and depreciation, in each case for such period as
determined in accordance with GAAP. With respect to Borrower, EBITDA
for such period shall include, without limitation, the costs of
`Global Sourcing' and `Global MIS' for such period.
"Eligible Credit Enhanced Retail Account" means an Eligible
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Account of Borrower: (a) that is supported by an irrevocable letter
of credit satisfactory to Foothill in its sole discretion (as to form,
substance, and issuer or confirming bank) that has been delivered to
Foothill and is directly drawable by Foothill; and (b) with respect to
which the goods that gave rise to such Eligible Account were purchased
by the Account Debtor for resale.
"First Amendment" means that certain Amendment Number One to Loan
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and Security Agreement, dated as of November ___, 1999, between
Borrower and Foothill.
"First Amendment Effective Date" means the date on which each of
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the conditions precedent contained in Section 3 of the First Amendment
have been fulfilled.
"Projections" means, with respect to any Person, such Person's
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forecasted consolidated (a) balance sheets, (b) statements of income,
and (c) cash flow statements, all prepared on a basis consistent with
its historical financial statements, together with appropriate
supporting details and a statement of underlying assumptions.
(c) Section 2.1(a) of the Agreement hereby is amended and restated in
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its entirety to read as follows:
Subject to the terms and conditions of this Agreement, Foothill
agrees to make advances ("Advances") to Borrower in an amount
outstanding not to exceed at any one time the lesser of (i) the result
of (A) the Maximum Amount minus (B) the Letter of Credit Usage, and
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(ii) the result of (A) (1) prior to the First Amendment Effective
Date, the Borrowing Base, (2) from and after the First Amendment
Effective Date through January 14, 2000, the Borrowing Base-Temporary,
and (3) from and after January 15, 2000, the Borrowing Base, minus (B)
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the sum of (1) the Letter of Credit Usage, plus (2) the aggregate
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amount of the Inventory Reserves, plus (3) the aggregate amount of the
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Landlord Lien Reserves. For purposes of this Agreement, "Borrowing
Base", as of any date of determination, shall mean the result of:
(x) the lesser of
(i) the sum of
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(A) (1) 75% minus the Dilution Reserve in respect of
Accounts, times (2) the aggregate amount of
Eligible Accounts other than Eligible Credit
Enhanced Retail Accounts, plus
----
(B) the lesser of (1) 75% of the Net Eligible Credit
Card Proceeds and (2) $3,000,000; plus
----
(C) (1) 85% minus the Dilution Reserve-Eligible Credit
Enhanced Retail Accounts, times (2) the aggregate
amount of Eligible Credit Enhanced Retail
Accounts;
and
(ii) an amount equal to Borrower's Collections with respect
to Accounts for the immediately preceding 60 day
period,
plus
(y) the lowest of
(i) $6,000,000,
(ii) the sum of (A) 40% of the value of Eligible Landed
Inventory, plus (B) the lesser of $5,000,000, and 40%
----
of the value of Eligible In Transit Inventory,
(iii) 85% of the net realizable value of Eligible Inventory
(which shall constitute its orderly liquidation value
less estimated expenses of liquidation thereof in each
case as reasonably determined by Foothill),
and
(iv) 50% of the amount of credit availability created by
clause (x) above,
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minus
(z) the aggregate amount of reserves, if any, established by
Foothill under Section 2.1(b).
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(d) Section 2.11(e) of the Agreement hereby is amended by deleting
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"$1,500" from such section and inserting "$5,000" in lieu thereof.
(e) The first sentence of Section 3.4 hereby is amended and restated
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in its entirety to read as follows:
This Agreement shall become effective upon the execution and
delivery hereof by Borrower and Foothill and shall continue in full
force and effect for a term ending on the Renewal Date and
automatically shall be renewed for successive 1 year periods
thereafter (each such successive 1 year period, a "Renewal Period"),
unless sooner terminated pursuant to the terms hereof.
(f) Section 6.2(b) of the Agreement hereby is amended by deleting the
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"and" immediately prior to clause (vi) of such section and inserting the
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following immediately prior to the final ";" in such section:
, (vii) a report, in form satisfactory to Foothill, summarizing
the gross Dollar amount of orders received by Borrower, sorted by
item, (with shipping and handling charges showing separately from the
aggregate Dollar amount of such orders attributable to the sale price
of each such item) for such week, and (viii) a report, in form
satisfactory to Foothill, summarizing Borrower's Advertising
Expenditures for such week
(g) Section 6.2(c) of the Agreement hereby is amended by deleting the
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"and" immediately prior to clause (ii) of such section and inserting the
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following immediately prior to the final ";" in such section:
, and (iii) a schedule (including such detail as Foothill shall
request) of (A) all payments or other transfers of Borrower's assets
made by, or on behalf of, Borrower to, or for the benefit of, Holdings
or any of Holdings' Subsidiaries, and (B) all payments or other
transfers of assets of Holdings or any of its Subsidiaries made by, or
on behalf of, Holdings or any of its Subsidiaries to, or for the
benefit of, Borrower
(h) Section 6.3 of the Agreement hereby is amended by deleting the
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"and" immediately before clause (c) in the first sentence of such section, and
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inserting the following immediately before the final "." in such sentence:
; and (d) as soon as available, but in any event prior to the
first day of each of Borrower's fiscal years, Borrower's Projections
on a consolidated basis for such fiscal year and for each month in
such fiscal year
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(i) Section 7.20 of the Agreement hereby is amended by adding the
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following as a new subsection (b) to such section:
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(b) EBITDA. EBITDA of Borrower and its Subsidiaries on a
consolidated basis for each period set forth below of at least the
minimum EBITDA amount corresponding thereto:
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Period Minimum EBITDA
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fiscal quarter ending December 31, 1999 ($875,000)
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fiscal quarter ending March 31, 2000 ($100,000)
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each period of 4 consecutive fiscal quarters To be established in
thereafter accordance with the
procedures set forth below
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Upon the receipt by Foothill of Borrower's projection for each fiscal
year of Borrower pursuant to Section 6.3, Foothill and Borrower shall
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negotiate in good faith to establish minimum EBITDA amounts for each
period of 4 consecutive fiscal quarters ending during such fiscal
year.
(j) The following is added as a new Section 7.25 to the Agreement:
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7.25 Advertising Expenditures. Make Advertising Expenditures
during any period of three consecutive weeks ending as of any date of
determination in excess of the amount set forth below corresponding to
the Advertising/Sales Ratio set forth below for such period:
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Advertising/Sales Ratio Maximum Advertising
Expenditures
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Greater than or equal to 55% $ 500,000
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Greater than or equal to 50% and less than 55% $ 850,000
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Greater than or equal to 45% and less than 50% $1,500,000
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Less than 44% $2,000,000
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(k) The following is added as a new Section 8.15 to the
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Agreement:
8.15 If Borrower shall have received less than $2,430,000
in cash from, or on behalf of, its Affiliates (including, without
limitation, Cendant and Xxxxxxxx.xxx) (whether as payment on
Accounts or repayment of any other obligation owing to Borrower)
during the period from the First Amendment Effective Date through
January 14, 2000.
(l) Schedule E-1 of the Agreement hereby is amended and restated
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in its entirety to read as set forth on Schedule E-1 of this Amendment.
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(m) Schedule 6.12 of the Agreement hereby is amended and
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restated in its entirety to read as set forth on Schedule 6.12 of this
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Amendment.
3. Representations and Warranties. Borrower hereby represents and
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warrants to Foothill that (a) the execution, delivery, and performance of this
Amendment and of the Agreement, as amended by this Amendment, are within its
corporate powers, have been duly authorized by all necessary corporate action,
and are not in contravention of any law, rule, or regulation, or any order,
judgment, decree, writ, injunction, or award of any arbitrator, court, or
governmental authority, or of the terms of its charter or bylaws, or of any
contract or undertaking to which it is a party or by which any of its properties
may be bound or affected, and (b) this Amendment and the Agreement, as amended
by this Amendment, constitute Borrower's legal, valid, and binding obligation,
enforceable against Borrower in accordance with its terms.
4. Conditions Precedent to Amendment. The satisfaction of each of
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the following, on or before November 19, 1999, shall constitute conditions
precedent to the effectiveness of this Amendment:
(a) The representations and warranties in this Amendment, the
Agreement as amended by this Amendment, and the other Loan Documents shall be
true and correct in all respects on and as of the date hereof, as though made on
such date (except to the extent that such representations and warranties relate
solely to an earlier date);
(b) Foothill shall have received a Reaffirmation and Consent, in
the form of Exhibit A attached hereto and incorporated herein by this reference,
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duly executed by Holdings;
(c) No Event of Default or event which with the giving of notice
or passage of time would constitute an Event of Default shall have occurred and
be continuing on the date hereof, nor shall result from the consummation of the
transactions contemplated herein;
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(d) No injunction, writ, restraining order, or other order of
any nature prohibiting, directly or indirectly, the consummation of the
transactions contemplated herein shall have been issued and remain in force by
any governmental authority against Borrower or Foothill;
(e) All other documents and legal matters in connection with the
transactions contemplated by this Amendment shall have been delivered or
executed or recorded and shall be in form and substance satisfactory to Agent
and its counsel; and
(f) Foothill shall have received an amendment fee of $100,000,
which fee shall be fully earned and non-refundable when paid, and shall be
charged directly to Borrower's Loan Account immediately upon execution of this
Amendment.
5. Conditions Subsequent to Amendment. As conditions subsequent to
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the effectiveness of this Amendment, Borrower shall perform or cause to be
performed the following (the failure by Borrower to so perform or cause to be
performed constituting an Event of Default):
(a) On or before December 1, 1999, deliver to Foothill
Collateral Access Agreements duly executed by the parties thereto for each
location where Borrower keeps inventory and each of Borrower's freight
forwarders, including, without limitation, the following inventory locations and
freight forwarders:
(i) Mendig Corporation - Detroit, Michigan (freight
forwarder);
(ii) Parcel Corp. of America - San Xxxxxxxx Valley,
California (freight forwarder);
(iii) Xxxxx-Xxxxx Logistics (freight forwarder); and
(iv) Xxxx Distribution Corp. - Georgia;
(b) On or before December 1, 1999, Deliver to Foothill Third
Party Service Agreements, in form and substance satisfactory to Foothill, duly
executed by the parties thereto from each Person with whom Borrower contracts
for fulfillment services or freight forwarding;
(c) On or before December 1, 1999, deliver to Foothill such
financing statements as Foothill shall request, in form and substance
satisfactory to Foothill in its reasonable discretion, executed by Borrower;
(d) On or before December 1, 1999, delivery to Foothill (i)
evidence, satisfactory to Foothill in its reasonable discretion, that Borrower
has insurance policies as required pursuant to Section 6.10 of the Agreement for
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each location where Borrower stores Collateral, and (ii) with respect to each
such insurance policy, to the extent not delivered to Foothill prior to the date
hereof, a certificate of insurance, together with the endorsements thereto, as
are required by Section 6.10 of the Agreement, the form and substance of which
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shall be satisfactory to Foothill and its counsel; and
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6. Miscellaneous.
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(a) Upon the effectiveness of this Amendment, each reference in
the Agreement to "this Agreement", "hereunder", "herein", "hereof" or words of
like import referring to the Agreement shall mean and refer to the Agreement as
amended by this Amendment.
(b) Upon the effectiveness of this Amendment, each reference in
the Loan Documents to the "Loan Agreement", "thereunder", "therein", "thereof"
or words of like import referring to the Agreement shall mean and refer to the
Agreement as amended by this Amendment.
(c) This Amendment shall be governed by and construed in
accordance with the laws of the State of California.
(d) This Amendment may be executed in any number of counterparts
and by different parties on separate counterparts, each of which, when executed
and delivered, shall be deemed to be an original, and all of which, when taken
together, shall constitute but one and the same Amendment. Delivery of an
executed counterpart of this Amendment by telefacsimile shall be equally as
effective as delivery of a manually executed counterpart of this Amendment. Any
party delivering an executed counterpart of this Amendment by telefacsimile also
shall deliver a manually executed counterpart of this Amendment but the failure
to deliver a manually executed counterpart shall not affect the validity,
enforceability, and binding effect of this Amendment.
[Remainder of page left intentionally blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first written above.
QUANTUM NORTH AMERICA, INC.,
a Delaware corporation
By:
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Name:
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Title:
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FOOTHILL CAPITAL CORPORATION,
a California corporation
By:
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Name:
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Title:
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S-1
Exhibit A
GUARANTOR REAFFIRMATION AND CONSENT
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Dated as of November __, 1999
The undersigned, as guarantor under the Holdings Guaranty (as such
term is defined in that certain Loan and Security Agreement, dated as of
December 1, 1998 (as amended by that certain Amendment Number One to Loan and
Security Agreement, dated as of the date hereof (the "First Amendment")) between
Quantum North America, Inc., a Delaware corporation, and Foothill Capital
Corporation, a California corporation) hereby consents and agrees to the First
Amendment and hereby confirms and agrees that the Holdings Guaranty is, and
shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects.
e4L, Inc.,
a Delaware corporation formerly known as
National Media Corporation
By:
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Name:
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Title:
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S-2
Exhibit E-1
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Eligible Inventory Locations.
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Exhibit 6.12
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Locations of Inventory and Equipment.
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